A person who has been sued for defamation can defend their decision to publish on the grounds of truth (justification), absolute privilege, qualified privilege or fair comment.
In Victoria, truth (technically, “justification”) has always been a complete defence to a defamation action. For this defence to succeed, the defendant must prove that the defamatory imputations or meanings are true (while the plaintiff – i.e. the person who claims to have been defamed – does not have to prove they are false). Further, the defendant must prove that the imputations conveyed by the words (not simply the words themselves) are true. Thus, using our example, the defendant needs to prove that the imputation that Mr X is a bigamist is true. It is not enough to simply prove that the words used (i.e. that Mr X got married last Sunday) are true.
Under the uniform defamation laws, truth alone is a complete defence. Therefore, it is not necessary for a defendant to prove that the publication related to a matter of public interest or public benefit.
In some situations, freedom of communication is considered to be so important that the participants are completely protected from being liable for defamation. Absolute privilege is recognised by the common law and by section 27 of the Defamation Act.
Anything said or done by members of parliament in the course of parliamentary proceedings is “absolutely privileged”. This means no action for defamation can be brought, even if the person who makes the defamatory statement knows it was false, and made the statement with the intention to damage the affected person’s reputation. Absolute privilege also covers the broadcast of parliamentary proceedings, documents tabled in parliament, and official reports of parliamentary proceedings (i.e. Hansard and unedited re-publications of it).
Similarly, all statements made in the course of court proceedings by judges, jurors, barristers, witnesses and parties are absolutely privileged. This includes statements contained in documents used in the course of legal proceedings (but not the publication of these documents outside court).
Absolute privilege applies to tribunals that operate like courts. However, it does not apply to purely administrative bodies, such as licensing authorities.
The Protected Disclosure Act 2012 (Vic) confers absolute privilege on disclosures, made on reasonable grounds, that a public body or public officer has engaged in, or proposes to engage in, improper conduct. The disclosure must be made to the appropriate person, as set out in section 6 of that Act.
There are other communications that may be absolutely privileged, such as communications between a solicitor and client, and communications between government ministers. However, the law in this area is complex; if it appears to be relevant, a lawyer specialising in defamation should be consulted.
In many situations (see the list below) it is in the interests of society that people can communicate frankly with each other, without fear of being sued for defamation. The defence of “qualified privilege” protects honest communication in such situations. Qualified privilege is recognised by the common law and by the Defamation Act. The Defamation Act does not affect the common law defence of qualified privilege. In situations protected by qualified privilege, a plaintiff can only successfully sue for defamation by proving that the defendant was motivated by malice in making the defamatory statement.
“Malice” means that the defamatory statement was made for some ulterior purpose and was not the “honest communication” that qualified privilege is intended to protect. The existence of malice may be inferred by showing that the defendant knew the imputations or meanings of their statement were not true (or did not care if they were true or false). This is because a person who knowingly makes a statement with false imputations is unlikely to have a proper purpose. The defendant’s negligence in not checking the truth of their statement does not amount to malice, unless such negligence amounts to reckless indifference to the truth.
Intending to cause harm to someone is an “improper purpose”, and is therefore usually considered to be malicious. However, this is not always the case, especially in political speech where qualified privilege exists between a person commenting on candidates and the electors; making a statement with the intention to damage a candidate’s chances of being elected is considered a proper purpose.
Many situations are covered by qualified privilege (there are too numerous to list them all); they include:
1 Statements made by a person under a legal or moral duty to another person. The second person must have a legitimate interest in receiving the communication. Examples include information given to police concerning a suspected offence, or information provided by one employer to another about the character of a person who the recipient of the information may employ.
2 Statements made to further a legitimate common interest. Examples include communication between an employer and their employee (or between two employees) concerning the running of the business; discussions between committee members about the committee’s work; and communication between members of a trade union and its officials on industrial matters. Only in unusual cases (e.g. public safety warnings), and cases concerning political matters (see point 5, below), will publication in a newspaper or on television be protected by qualified privilege. This is because it is very rare that the public as a whole has a legitimate interest in receiving the communication. However, a newspaper circulated to a limited readership (e.g. a trade union journal) may be covered by qualified privilege.
3 Protection of a legitimate interest. If, for example, a person’s reputation has been attacked in public, their reply to that attack is protected by qualified privilege. Similarly, a response to an attack upon one’s employer is privileged.
4 Fair reporting on public proceedings. Qualified privilege applies to fair and accurate reports of parliamentary or judicial proceedings, including reports based on parliamentary or court documents, because such reporting is viewed as being in the public interest. The Defamation Act also provides statutory defences for the publication of public documents (s 28) and for the fair reporting of proceedings of public concern (s 29).
5 Discussion of government and political matters. Every Australian has an interest in disseminating and receiving information, opinions and arguments about the government and about political matters that affect Australians. When a defamatory statement is made to a wide audience (but not to electors in a single electorate), the publication must be reasonable. This usually means that the publisher must show that they had reasonable grounds for believing the statement to be true, took proper steps to verify it and, where possible, included a response from the person defamed.
6 Reasonable publication. Section 30 of the Defamation Act contains a statutory form of qualified privilege for publications made to the general public where the publisher’s conduct is “reasonable”. Whether conduct is reasonable is determined in accordance with factors set out in the Act.
The common law defence of “fair comment” applies to comments/opinions expressed about matters of public interest. The name of this defence is misleading as the comment does not need to be fair (i.e. it doesn’t need to be reasonable or just). It only needs to be an opinion that a person, however prejudiced, could honestly hold. A person may publish any comment/opinion to the world at large, even if the meanings conveyed are defamatory and false, provided that:
• the comment concerns a matter of public interest. This includes comments about the government, the administration of public services and institutions, and matters submitted to public criticism (e.g. books, plays, concerts and films);
• the defamatory imputation is understood (by those to whom it is published) to be a comment (i.e. an opinion, not a statement of fact). Statements of fact are not protected by the fair comment defence and must either be proved to be true, or be protected by absolute or qualified privilege;
• the defamatory imputation conveyed by the comment is based on facts that are true and which were either set out, or sufficiently referred to, in the publication, or which are notorious.
Like qualified privilege, the defence of fair comment can be defeated if the plaintiff can establish that the defendant made the defamatory comment maliciously. In the context of fair comment, “malice” means that the publisher did not honestly hold the opinion that was published.
The Defamation Act (s 31) provides a defence of “honest opinion” that is similar to the common law fair comment defence. Just as with the common law, the statutory defence can only be defeated if a plaintiff can establish that the opinion was not honestly held by the defendant. The statutory defence also protects publishers who publish the opinions of third parties (e.g. callers to talkback radio and letters to editors).